Obscenity Law 101

Obscenity Law 101



By J. D. Obenberger, Attorney at Law

Written in 2001 for Chicago's Gentlemen's Pages, a local advertising tabloid for which I formerly wrote.


“[N]on obscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. . .  [O]ne would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults.” Chief Justice Rhenquist, United States v. X-Citement Video, Inc., 115 S. Ct. 464, (1994)

            A few days ago, the Attorney General of the United States announced a series of at least thirty-six arrests that is expected to expand to a list of well over a thousand, all connected with a Yahoo Club centering on child pornography, an operation that has all the hallmarks of a government sting operation. John Ashcroft went on to make a series of remarks aimed not merely at child pornography, the evil of which, when properly understood, is the subject of a pretty broad consensus in American society, but which seemed to include pornography in general, a subject that is much more controversial. It was not long ago that the office charged with the prosecution of federal obscenity laws endured a cosmetic change which relabeled it the Child Exploitation and Obscenity Section (CEOS), though formerly known as the National Obscenity Enforcement Unit (NOEU).

            (I must note in passing that “child pornography” is a badly understood term. Most people are outraged, and I think rightly so, at the very concept of young children being exploited in depictions that amount a documentary of sexual molestation and abuse, especially those who, themselves, have endured the experience, and who most vividly remember and understand how these events can change a young life forever. Many, though, seem surprised to learn that the same five-year federal prison sentence that can result from the possession of images depicting the molestation of a six year old applies with equal vigor to images of a seventeen year old having legal intercourse with her husband. In this field, as in many others, the fit of the law is not exactly consistent or entirely congruent with common sense. In Illinois, it is not the crime of sexual assault for a man of any age to have consensual sex with a partner seventeen years of age, provided he does not have a position of trust, employment, supervision, or responsibility over the minor. But if he takes a lewd photograph of her with her shirt off, or receives from her such a photograph she has taken, he faces five years federal imprisonment. So, the act of actually having sex with the seventeen year old is not a criminally pedophilic act under the sexual assault statute,, but having such a picture in one’s possession is. Prosecutors do not call seventeen year olds children when they are criminally charged: They are called merely “defendants” and “criminals”. I don’t make the laws, I just explain them. And no, it isn’t always easy to explain them.)

            The real apprehension here is that the spectre of disgusting images involving the molestation of children will be used as a smokescreen to cover aggressive government action to criminally prosecute adult pornography. And I sense that is coming.

            A casual glance at Penthouse Magazine, sold just about everywhere in the Untied States, will surprise you if you haven’t looked in awhile: Hardcore insertions are now a regular part of each issue. Videos with insertion are a staple of many, if not all, of the pay per view cable fare of systems in the Chicago area; Hotels with pay per movie programs offer the same. And, of course, the Internet is largely fueled by the attraction of men (and women in increasing numbers) to the same kind of imagery.

            Freedom of speech in the United States comes with the highest and strongest guarantee in the law: The First Amendment, the headliner of the Bill of Rights. It has long been established that the First Amendment protects all expression, including pictures, text, dance, plays, television, and music, because all of them are, to one extent or another, expressive media. The particular expression may be controversial, but stirring up controversy, in fact, is one of the chief social values of free speech: It leads people to question things, argue, and from that process the truth emerges. There may be few great truths of the universe that emerge from watching a cascade of bukkake on the face of some porn starlet, and if there are any such truths they still elude me, but it cannot be fairly denied that something, whether a nice thing or not, is being expressed; Once expression is restrained or harnessed in this arena, it is hard to stop it elsewhere. The pornographers hold the line, the forward edge of the battle area, against repression, and if they fall, it is the white supremicists, the religious extremists, and the minority political movements who will next become most embattled. The nature of man and society being what it is, if the pornographers fall, ultimately it will be safe to be only a Catholic, Protestant, or Jewish Republican or Democrat. And should that day come to pass, America will cease to be the land of liberty, and it will cease to be America.

            The whole concept of obscenity law can best be understood as a narrow exception to the general principal that free expression is a matter of right for all Americans. In a very narrow range, States are permitted, if they wish - and not all do - to criminally punish the distribution of certain erotic, expressive works. (The private home possession of adult pornography, held for personal use, even if obscene, cannot be made a crime in any State under the First Amendment, and in this way, the law of obscenity is different from the law concerning drugs. Obscene materials are not contraband per se. And expressive materials are presumed to be constitutionally protected until and unless determined to be obscene, limiting law enforcement to the seizure of just one copy of the work at the time of an arrest; The power to take more, or all of them, would be the power to censor the expression, and that is not a power entrusted to the police.)

            Since Miller v. California was decided by the Supreme Court in 1973, no state can attach a criminal penalty to the distribution of erotic works unless it has enacted a statute so doing, establishing a crime in which the following tests must be satisfied in the affirmative beyond reasonable doubt: a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

            The word “prurient” is not a common one. It means Morbid or Shameful. Morbid, in turn, means Diseased. Under the best reading of Brocket v. Spokane Arcades, decided in the 1985 by the Supreme Court, something more than ordinary, healthy lust must be incited by the work to make it obscene: The appeal of the work, taken as a whole, and reasonably viewed under contemporary social values, must be to an unhealthy drive. The “community” in question is ordinarily a state-wide standard (it is in Illinois) or the geographic district in which a US District Court sits, though the states can determine a smaller area to be the community in question. A work that is without sexual meaning to a broad part of the population, but which has a target audience, fetishists for example, will be judged as intended to that target audience, though the prurience will be judged by the values of the community at large.

            I believe that society has moved far away from any place where consensual, adult, male/female or gay explicit content of the routine and ordinary nature faces a serious risk of conviction at the hands of American juries, just about anywhere. But those kinds of content labeled as “extreme”, appealing to fetishes, or involving conduct that arguably degrades the female performer more than it degrades the male performer, are already under fire, and under prosecution, including in surprising places such as Los Angeles.

            John Ashcroft just spent a substantial amount of money draping the bare breast of a depression-era statue in the Justice Department to cover a bare breast. We would not be in the lease surprised that this individual, who leads prayer breakfasts for his staff, intends to try to change the fact of American society by going after adult porn. Three lines from rock songs come to my mind as prophecy of what is to come: I see a bad-a-moon a risin’; A Hard Rain’s Gonna Fall; The words of the prophets are written on subway walls and tenement halls.

            If ever there was a time for distributors, porn bookstores and video rental outlets to have their video content reviewed, this is the time. It would make some sense to have it reviewed by the same kind of lawyers who would be called upon to defend it should a criminal prosecution for obscenity be commenced after arrests. This may be the last clear chance to do so.

Copyright 2001-2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.